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The Supreme Court of Canada:
The Supreme Court of Canada is the highest court in Canada and
is the final court of appeals from all other courts in Canada.
The judges are appointed by the federal government and the court
consists of eight judges and one chief justice. At least three
judges have to come from Quebec. Three judges come from Ontario,
two from western Canada, and one from the Atlantic provinces.
The Supreme Court sits for three sessions in a year in Ottawa.
Definitions and Classification of Crimes in Canada
In Canada Crimes are generally divided into summary,
indictable, or hybrid offenses. Indictable offenses include only
the most serious crimes, which are punishable by at least 2
years imprisonment in a federal penitentiary, such as murder,
rape, and robbery. Since the Canadian Criminal Code is used by
all provinces, territories, and municipalities, the definition
of indictable offenses is uniform in all jurisdictions. Some
indictable offenses, such as murder, treason, and piracy, are
also called "supreme court exclusive" offenses. Other offenses,
like theft, betting, and gaming, are called "absolute
jurisdiction" offenses. Summary offenses are less serious, such
as motor-vehicle offenses and creating a disturbance. Sentences
can range from fines (maximum of $2,000) and probation, to a
maximum of 6 months incarceration in a provincial prison. (All
expenditure information is presented in Canadian dollars.)
Unlike indictable offenses, summary offenses are most often
defined by provincial or municipal legislation. For instance,
there are varying provincial statutes for traffic violations.
Thus, the provinces tend to have jurisdiction on less serious
offenses, while the federal government is given legislative
authority for more serious offenses. Hybrid or dual
offenses can be prosecuted either as summary or indictable
offenses, at the decision of the prosecutor. For example,
prosecutors typically decide to prosecute the crime of breaking
and entering as summary offenses, having the effect of
expediting case dispositions by moving the case to a lower
court.
Age of criminal responsibility. Under the Young Offenders Act
of 1985, the age of adult culpability is 18 years-old.
Drug offenses. For Canadian Police Statistic reporting
purposes, the Canadian Centre for Justice Statistics divides
drug offenses into the categories of
trafficking/importation/cultivation and possession. It is a
federal crime to traffic (e.g. manufacture, sell, give,
administer, transport, send, deliver, distribute, or to attempt
such actions), import, export, cultivate, or possess drugs
listed under the Narcotic Control Act and under the Food and
Drugs Act. (The Narcotic Control Act (1985) lists the following
durgs to be illegal under Schedule 1: Opium, coca, cannabis
sativa, phenylpiperidines, phenazepines, amidones,
methadols,phenalkoxsams, thiambutenes, moramides, benzazocines,
ampromides, benzimidazoles, phencyclidine, fentanyl, tilidine,
carfentanil, and alfentanil. The drugs listed under the Food and
Drugs Act are generally those which must be controlled, are
available only for medical use, are legally restricted, or are
used for non-medical purposes. Carswell, 1989: 546-547, 596-598;
Fourth United Nations Survey, 1993).)2. Crime statistics. The
definitions of the following crimes are based on administrative
definitions which are constructed by the Canadian Centre for
Justice Statistics to aid Canadian Police report crime
statistics to the Uniform Crime Report Survey and have legal
standing under the Canadian Criminal Code.
Under Section 231 of the Canadian Criminal Code, "Murder in
the first degree is murder when it is planned and deliberate" or
when the victim is "a) a police officer, police constable,
constable, sheriff, deputy sheriff, sheriff's officer or other
person employed for the preservation and maintenance of the
public peace, acting in the course of his duties; b) a warden,
deputy warden, instructor, keeper, jailer, guard or other
officer or a permanent employee of a prison, acting in the
course of his duties; or c) a person working in a prison with
the permission of the prison authorities and acting in the
course of his work therein" or when death is caused while
committing or attempting to commit hijacking an aircraft, sexual
assault, sexual assault with a weapon (including threats to a
third party or causing bodily harm), aggravated sexual assault,
kidnapping and forcible confinement, or hostage taking. (Under
Section 231 of the Criminal Code, subsection 3, "...murder is
planned and deliberate when it is committed pursuant to an
arrangement under which money or anything of value passes or is
intended to pass from one person to another or is promised by
one person to another, as consideration for that other's causing
or assisting in causing the death of anyone or counseling
another person to do any act causing or assisting in causing
that death. All murder that is not first degree murder is second
degree murder. As of 1983, the terms "rape" and "indecent
assault" were replaced by "sexual assault.
The definition of sexual assault can be ascertained by combining
Sections 265 and 271 of the Canadian Criminal Code: Section 265
(Assault) states that "
(1) A person commits an assault when [generally] without the
consent of another person, he applies force intentionally to
that other person, directly or indirectly,
2) This section applies to all forms of assault, including
sexual assault, sexual assault with a weapon, threats to a third
party or causing bodily harm and aggravated sexual assault...".
In Section 271 (Sexual Assault) the Commentary states that,
"Sexual assault...is not defined, although an essential element,
assault, is elsewhere defined for such purposes. In general, it
is an assault under Section 265(1) committed in circumstances of
a sexual nature such as to violate the sexual integrity of [the
victim].
Theft, includes the theft of property worth over $1,000 (e.g.
embezzlement, fraud, other misappropriation of money held under
direction) and does not include motor-vehicle or bicycle theft,
or shoplifting. Attempts are included. Generally, under Section
322 of the Canadian Criminal Code, a person charged with theft
is one "...who fraudulently and without color of right takes,
or...converts to his use or to the use of another person,
anything, whether animate or inanimate, with intent, a) to
deprive, temporarily or absolutely, the owner of it, or a person
who has a special property or interest in it..
Canada Police powers and Canadian Police Procedures
Under Sections 26 and 27 of the Criminal Code, when making an
arrest or seeking to prevent a crime, the police may not use
more force than is necessary. "Everyone who is authorized by law
to use force is criminally responsible for any excess thereof
according to the nature and quality of the act that constitutes
the excess.
Police can make an arrest with or without an arrest warrant.
An arrest warrant may be issued by the Justice of the Peace if
probable grounds exist that the public interest would be served
by this action, such as a high risk that the suspect will leave
the area. Arrest warrants are mainly used for persons who fail
to appear in court, are at-large, or fail to pay a fine. Under
Criminal Code Section 28, police are required to inform the
suspect about the reason for the arrest. After the arrest, the
suspect must be brought to the Justice of the Peace within 24
hours for further processing. At that point, the Justice of the
Peace decides whether to further detain or release the suspect
before his or her trial appearance. Barring public safety risks,
pre-trial detention is discouraged and most suspects are
released after arrest. Most arrests are made without a warrant,
although no official statistics exist as to the exact
proportion. Warrantless arrests can occur if the police are
certain or have probable grounds to believe the suspect has
committed or is about to commit an indictable offense; is
committing a crime within view of the police officer; or has an
outstanding arrest warrant. Except for very serious offenses,
police are constrained by the Bail Reform Act of 1971 to making
warrantless arrests only if they believe that an arrest is the
only way a suspect will show up for trial or if the "public
interest" necessitates it (e.g. prevention of suspect committing
future offenses or destroying evidence). Warrantless arrests are
made at the discretion of the police officer, who can release
the offender on his or her own recognizance or bring him to the
Justice of the Peace (lowest ranking judicial officer). The
Justice then decides whether to grant bail. The bailing process
can last up to 8 days.
Decision to arrest. An alternative to arrest is the
"appearance notice" which a police officer can issue. The notice
ensures the suspect will appear for trial by specifying a time
and place (e.g. court house or police station) for attendance.
Another option the police may exercise is to request that the
Justice of the Peace issue a summons for the suspect to appear
at trial.
Search and seizure. Police are allowed to search the person
and property in the course of making an arrest. Without an
arrest being made, they generally require authorization for the
search from a Justice of the Peace. The Justice will usually
authorize the search if he or she thinks there is probable cause
to believe the property could contain evidence that a crime was
committed. The search warrant must specify the items and/or
persons to be seized and the place to be searched. The search
usually must be conducted during daylight hours. However,
evidence obtained by an illegal search can still be introduced
as evidence at trial. There is also a type of search which is
carried out by a writ of assistance, available only to RCMP
officers and issued by a judge in the Federal Court of Canada. A
"writ" allows RCMP officers to search, with some degree of
reasonableness, any person or property which they believe to be
connected to an offense violation of the Customs and Excise
Acts, the Narcotic Control Act, and the Food and Drugs Act. The
search can be conducted day or night, and allows for the seizure
of narcotics or contraband and a search of persons. The writ
remains active until the police officer is no longer operating
within the confines of the Act.
Confessions. A citizen must answer the questions of a police
officer and may be subject to arrest for obstructing justice for
refusal to do so. In some provinces, drivers of motor vehicles
are required, when stopped, to give their name and address to
the police officer. A confession can be entered into court as
evidence of a crime only if it can be proved that it was given
voluntarily. Although not required by law, the arresting police
officers will inform a suspect of the right to remain silent and
the right to counsel in order to prove that a confession
statement was made voluntarily.
Canada Judicial Process, Procedures and Rights of the
Accused
The Canadian Bill of Rights guarantees certain rights to
persons charged with a crime. Any person charged with an offense
has the right: "a) to be informed without unreasonable delay of
the specific offence; b) to be tried within a reasonable time;
c) not to be compelled to be a witness in proceedings against
that person in respect of the offence; d) to be presumed
innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal; e) not
to be denied reasonable bail without just cause; f) except in
the case of an offence under military law tried before a
military tribunal, to the benefit of trial by jury where the
maximum punishment for the offence is imprisonment for five
years or a more severe punishment; g) not to be found guilty on
account of any act or omission unless, at the time of the act or
omission, it constituted an offence under Canadian or
international law or was criminal according to the general
principles of law recognized by the community of nations; h) if
finally acquitted of the offense, not to be tried for it again,
if finally found guilty and punished for the offence, not to be
tried or punished for it again; and i) if found guilty of the
offense and if the punishment for the offence has been varied
between the time of commission and the time of sentencing, to
the benefit of the lesser punishment". These rights are
effective when a person has been charged with an offense. The
word charge does not have any precise meaning in law, but merely
means that steps have been taken that will lead to criminal
prosecution. At trial accused persons may testify in their own
defense, but cannot be compelled to testify. They cannot be
forced to help incriminate themselves at trial by being
compelled to be a witness. The right of the accused not to be
forced to testify also generally applies to their wife or
husband. A spouse must testify for the accused if called as a
witness, but cannot be called as a witness for the prosecution.
In the case of spouses, there are certain exceptions concerning
sexual offenses and offenses involving a victim under the age of
14, in which a spouse can be compelled to testify for the
prosecution.
Assistance to the accused. Presently, all provinces and
territories will appoint an attorney to represent persons who,
if convicted, may be imprisoned or may lose their means of
financial support. When defendants first appear at trial, they
are given an opportunity to hire a lawyer if they have not
already obtained one. In jurisdictions where there is a private
legal aid scheme, an accused person who cannot financially
afford a lawyer can, if his or her application to legal aid is
accepted, select a lawyer of his or her choice from a list of
lawyers who have agreed to participate in the legal aid panel.
In cases where the accused is applying for legal aid, in order
to allow counsel to prepare the case, the matter will usually be
held over for 2 weeks, during which time a trial date is set.
When the accused presents the court with a letter from his or
her lawyer setting out the trial dates, the lawyer has gone on
the record as representing the client. This means that the
lawyer is committed to act for the client and will, unless his
or her name is removed from the record, be obligated to appear
at the accused's trial. Before setting a trial date, the lawyers
will want to ensure that they are prepared to represent the
accused and that their fees are secure. If an accused cannot get
legal aid and cannot agree with a lawyer as to an appropriate
fee, the judge will inform the accused that the matter has been
marked preemptory, meaning that it will proceed to trial whether
or not a lawyer is representing the accused. (Canada Year Book
1990: 20.8; MacIntosh, 1989: 376-377). Someone who is charged
with an indictable offense must appear in court personally to
set a trial date. However, an accused who is charged with a
summary conviction offense may appear through an agent. An agent
is a person who can legally represent the accused, such as a
lawyer, tutor, or curator. An accused charged with a summary
conviction offense may not have to appear at trial, but
technically must have an agent appear instead. Although a lawyer
can appear without a client at trial, the trial judge can order
that the accused to be present. (MacIntosh, 1989: 376-377). In
fiscal year 1989-1990, approximately 568,510 criminal and civil
cases were handled by legal aid attorneys, paralegals, and
private attorneys working on a fee-for-service basis. (Juristat,
1991: 7).
Before a suspect can be criminally prosecuted, another person
must put forth information before a Justice of the Peace in
which he or she swears the accused has committed a specified
offense or that there are reasonable grounds to believe that
someone has committed a specified offense. In most cases, the
person who swears on the information presented to the justice
will be a police officer, but any private person having
knowledge of a criminal offense may be the informant. Once the
justice of the peace having jurisdiction has received the
information, he or she must decide whether a case has been
presented that warrants prosecuting the alleged offender. This
is the first judicial determination in the prosecution process.
It is not a determination of whether the alleged offender is
guilty; it is only a determination that there are grounds that,
absent any explanation or defense, would warrant the alleged
offender being put on trial. Once the justice of the peace
having jurisdiction over an offense has received information,
and decides there are grounds to support a prosecution, the
justice can issue process (e.g. issue a summons), which is an
order directed to the accused requiring him or her to appear on
a certain date at a particular court. The judge may also choose
to issue an arrest warrant, which authorizes the police to
arrest the person in question. Whichever of the 2 processes are
issued, the laying of the information must be established,
before there is any procedural contact with the accused. On the
other hand, there are cases where the police encounter a person
in the act of committing an offense, or who has just committed
an offense. Here, the police act on their own initiative and
start the process of an arrest. They then have time to go to a
justice of the peace and lay the information. In this case, the
laying of the information would occur after the first procedural
contact with the accused Finally there is a judicial interim
release hearing, in which the accused is put in temporary
custody while waiting to be brought before the justice. This
generally occurs if the police believe that it would be in the
best interest of the public to hold the accused or that the
offense is of a serious nature. (Understanding the Canadian
Criminal Justice System, 1993: 6). Appeals at the level of
indictable offenses are made to the Provincial Court of Appeal.
Persons appealing the sentence of a summary offense must go to
the district or county court judge.
Who conducts prosecutions in Canada?
Crimes are considered to be offenses committed against the
state, symbolized by the Queen of England. Since the state is
regarded as the aggrieved party, all criminal trials are
conducted in the name of the state. The process of moving toward
a prosecution is a matter of discretion on the part of the
police. In fact, many times the police officer acts as the
informant, another term for the prosecutor. The prosecutor can
also be a private person, in which the cases are referred to as
private prosecutions. Each province of Canada has an organized
state prosecution machinery under control of the provincial
Attorney General. Those offenses prosecuted by the federal
government have a similar federal prosecution machinery
operating under the control of the Minister of Justice and
Attorney General for Canada. Part of this machinery consists of
staff members (lawyers) of various localities (counties,
district or cities) with various titles (e.g. Crown Attorney,
Crown Prosecutors, City Prosecutors, Federal Prosecutors, and
part-time agents). These staff members have many duties and
functions, one of which is to prosecute criminal offenses on
behalf of the Queen.
Alternatives to trial. For most serious indictable offenses,
the accused has no choice but to stand trial by a superior court
of criminal jurisdiction sitting with a jury, barring an
agreement between the accused and the Attorney General for a
trial without a jury. However, there is another group of
indictable offenses that are not considered serious enough to
require a trial either by judge and jury or by a federally
appointed judge. In these cases, the accused must be tried by a
provincial court judge unless, for some exceptional reason, the
judge decides otherwise. These types of offenses include theft
under $1000 (when prosecuted as an indictable offense), most
gaming and betting offenses and some other fraud and property
offenses of a relatively minor nature. For all other indictable
offenses, the accused has a choice in how he or she wishes to be
tried. He can choose one of the three different courts of
criminal jurisdiction available. Under the Criminal Code, there
are 3 levels of trial courts: the superior court of criminal
jurisdiction, the court of criminal jurisdiction, and the
summary conviction court. (Mewett, 1988: 67-68). Pre-Trial
Diversion Programs also exist toenable offenders who have been
charged but have not yet been convicted, to be diverted out of
formal criminal proceedings to an alternative method of case
resolution. Adult diversion programs, largely based on the
alternative measures provided under the Young Offenders Act,
include personal service programs such as restitution and
helping the victims repair property damage, as well as
alcohol/drug rehabilitation and educational programs.
What is the Bail procedure in Canada?
The principle governing bail hearings, generally, is that an
accused charged with an offense other than one of the very
serious offenses listed in Section 469 of the Criminal Code, is
entitled to be released, but must return to appear in court on
the day of trial. This principle applies unless there is reason
to believe that additional measures must be taken to ensure
appearance at trial. If the Crown Attorney can show cause why
the accused should be detained in custody or why the accused
should not be released on his or her unconditional undertaking,
the accused will not be released. If the Crown prosecutor cannot
show cause why the accused should be detained in custody, but
can convince a judge that the accused should not be released
without conditions, a justice or a judge will release the
accused only under certain conditions. |
